Op-Ed: The First Amendment Isn’t Optional

In 1968, at the height of the Vietnam War, 19-year-old Paul Cohen walked through the Los Angeles County Courthouse wearing a jacket with a four-letter negative opinion about the military draft on the back. His objection began with the F-word. He was arrested and convicted for disturbing the peace.

The Supreme Court overturned his conviction, and Justice John Marshall Harlan left American law a sentence worth keeping: “One man’s vulgarity is another’s lyric.”

Nearly 60 years later, two governments — Los Angeles and the state of Minnesota — are testing whether that’s still true.

Let’s start out west, where the Los Angeles City Council has unanimously banned from public comment what are often called the “N-word” and the “C-word.” The rule cannot bring itself to print them, so it spells them out a letter at a time, the way a parent spells C-A-N-D-Y over a toddler’s head. Then it bans words assembled by hanging -ish, -y, or -ing on the end.

Los Angeles has enacted a rule that conjugates, but also subjugates.

Without doubt, the targeted words are vile. People of character refrain from using them. That’s equally true of the slurs deriding other groups — the ones the Council left untouched. And that creates a problem.

Two First Amendment organizations are now demanding repeal of the ban and threatening federal litigation.

L.A. will likely lose such a battle because government has no legal authority to officially deem some slurs objectionable and others permissible. Even a ban on all of them would fail, since the Constitution protects speech that officials or listeners find offensive. Cohen’s case established that.

The Supreme Court gave even more clarity on this in 1992. A Minnesota teenager burned a cross in a black family’s yard and was charged under an ordinance reaching symbols that aroused anger based on race.

His conduct was already criminal in other ways. The Court unanimously struck the ordinance down because government had sorted unprotected speech into favored and disfavored subjects.

Some might call the banned words or subjects “hate speech.” That term is subjective, but no matter the definition, the high court in 2017 ruled that “hate speech” is protected under the First Amendment.

You’d think that these decisions from America’s highest court would have made the law rather clear. But, yet again, Minnesota didn’t get the message. And you likely heard about the case.

Last week, a white woman named Shiloh Hendrix was convicted of misdemeanor disorderly conduct. Her offense? At a Rochester playground last year, an 8-year-old boy took an applesauce pouch from her diaper bag. She chased him and used the same racial slur banned by the L.A. City Council.

A bystander followed her with a phone, asked whether she’d said it, then asked her to say it again. She did, at him, several times, while walking away holding her toddler. The video went viral.

The jury acquitted her on the count involving the child but convicted her on the count involving the black man holding the camera. The judge fined her $1,000, ordered her to perform community service, and gave a stayed jail sentence. Her lawyer is appealing the judgment.

Minnesota’s disorderly conduct statute prohibits abusive language tending to arouse alarm, anger, or resentment. That’s so broad as to criminalize a bad mood. The Minnesota Supreme Court saw the problem in 1978 and narrowed the statute to ban only “fighting words.”

Fighting words are a direct, face-to-face insult likely to provoke immediate violence, not a government conclusion that a word is uncivil or hurtful. Hendrix was leaving the playground and the bystander approached her, recorded her, and all but begged for the repetition he later published.

A fight was never even in the cards. And the U.S. Supreme Court hasn’t upheld a fighting words conviction since it created the category in 1942.

The law is already settled: despicable and racist language is protected speech. That means the Hendrix appeal is likely to succeed.

So, whether it’s spouting off in a California city council meeting or yelling on a Minnesota playground, the First Amendment simply isn’t optional. But not every utterance is protected speech. True threats, actionable defamation, and incitement likely to produce imminent lawless action may be sidelined.

There’s a thoughtful reason behind the doctrine of protecting speech that hurts. Courts recognize that letting government use offensiveness to silence critics ends worse than letting the words be heard.

The First Amendment does not require us to admire offensive or annoying speech. It requires government to tolerate it.

Los Angeles politicians banned the word. A Minnesota jury punished it. But the Constitution protects it. And neither vote nor verdict can change that.

The views expressed in this opinion article are those of their author and are not necessarily either d or endorsed by the owners of this website. If you are interested in contributing an Op-Ed to The Western Journal, you can learn about our submission guidelines and process here.

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